Director of Public Prosecutions v Imogen Powell (a pseudonym)
[2015] VCC 1426
•14 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IMOGEN POWELL (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2015 | |
DATE OF SENTENCE: | 14 October 2015 | |
CASE MAY BE CITED AS: | DPP v IMOGEN POWELL (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1426 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of using a carriage service to transmit indecent communication to a person under 16 years of age (s474.27A of the Criminal Code Act 1995 (Cth)) – Community Correction Order for 2 years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai | Solicitor for Office Public Prosecutions |
| For the Accused | Mr A Burns | Tartaglia Lawyers |
HER HONOUR:
1 This sentence will be published under the pseudonym Imogen Powell in order to ensure that the identity of the victim is protected.
2 Imogen Powell, you have pleaded guilty to one charge of using a carriage service to transmit indecent communication to a person under 16 years of age. This carries a maximum penalty of seven years' imprisonment.
3 Your offending conduct is summarised in the prosecution opening (Exhibit “A”). Over a period of approximately 20 months, between 1 January 2013 and 20 October 2014, you transmitted approximately 25 photographs and 10 videos to your victim, a young boy who was a close school friend of one your sons. At the relevant time, your victim was aged between thirteen and fifteen years. I make it clear that the material was not child pornography. Also, the prosecution acknowledges that you did not intend to procure or make it easier to procure the victim for the purpose of engaging in sexual activity, however, the material was indecent.
4 You had formed an obsessional infatuation with the child, such that you believed that you loved him. Some of the indecent material forwarded to him were photographs of yourself naked and touching yourself, with captions indicating, amongst other things, that you were thinking of him. In addition, you sent your victim photographs of naked males, asking whether he looked like that. Also, you transmitted photographs of naked females, who were younger than yourself, asking whether your victim preferred younger or older women. At the relevant time, you were aged between thirty-eight and forty years.
5 It reached the stage where your victim was staying at your home every weekend, from Friday evening to Sunday evening, but there is no suggestion that you ever inappropriately touched him. You pandered to your victim’s needs in terms of driving him to places, cooking whatever he felt like and buying things that he desired, such as computer equipment. You and your victim regularly messaged each other on Facebook, talking for up to two hours at a time.
6 On 14 October 2014, police attended your home because they had become aware of information that a single image of a naked juvenile had been uploaded onto your Facebook account. As it transpired, this was unconnected with you or your victim. However, believing that the police were about to uncover your obsessive relationship and contact with your victim, you asked your victim to lie to police and tell them that he was responsible for transmitting the material which you, in fact, had sent him, so that he could later view it. When asked to do this, your victim became very stressed and revealed your conduct to his mother, who notified police.
7 Before police obtained a statement from your victim, you attended the police station in tears and, in a record of interview, confessed the entirety of your relationship with your victim. You acknowledged that your behaviour was wrong and stupid and that you had fallen in love with your victim and had embarked upon obsessive habits of wanting to talk to him every night and had asked him whether he wanted to be with you and told him that you would wait for him to turn eighteen.
8 You told police that your husband was emotionally remote and pursued his own interests and that he did not communicate with you and spent little time with yourself and the family as a unit. You said you fell in love with your victim and “my heart’s a bit mixed up”. You told police that you lived two different lives. In the day, you were one person and on Facebook, you were another. You said you did not know yourself and “it’s crazy”. You were very upset because you wanted to be with your victim, but acknowledged that, as he is your son’s best friend, you could not be. You said that you felt bad because you knew that there were beautiful young girls out there for your victim. You acknowledged that you “shouldn’t love a kid … I've got a husband and I've got kids.” You also acknowledged that sometimes your victim would say that your conduct made him a bit embarrassed and told police “I just needed to tell you guys, cos I don’t want to stop, I want to see him still, yeah, as a mum figure. I know I can’t now, and I won’t see him again.” You said that you would love to see him again just to say sorry and that you were going to miss having him over. You stated, “I don’t know how I got mixed up in this” and wished that you could talk to your victim and stated, “Poor kid what I'm going to put him through … I feel bad enough for him and he now has to talk to police.”
9 You are presently aged forty-one years, having been born on 15 July 1974. You come before the Court with no prior criminal history. In a plea on your behalf by Mr Burns, the Court was told that you come from a loving family but had suffered great trauma when, at the age of fourteen years, you came across your only sibling, your older brother, who had committed suicide by shooting himself. You had never had appropriate counselling in relation to that and material before the Court from your current treating psychologist, Ms Bulman, and a forensic psychologist, Mr Cummins, indicated that you had suffered undiagnosed and untreated Post-Traumatic Stress Disorder symptoms for many years and that these symptoms are ongoing. In addition, this material indicated that you were a dependent personality type and, shortly after your brother’s death, when you were only fifteen years of age, you commenced a relationship with your now husband to whom you have been married for 25 years.
10 The material also indicates that you are emotionally immature. You wanted to be taken care of and accepted that your husband would make all major decisions in your relationship. The marriage ended up being one where he was very critical, very negative and never agreed to or asked your opinion on matters. He was remote emotionally, psychologically and physically and for many years you have been lonely and unhappy in the relationship. Ms Bulman, who has been seeing you since 24 November 2014, described you as having limited understanding, regulation and expression of your emotional experiences. She stated that you are vulnerable to acting without thinking, susceptible to others’ control and lacked self-esteem and confidence in your own judgment.
11 Mr Cummins, in his report, agrees with Ms Bulman’s opinion. He notes your history that “I think one of the things that confused me was that he (your victim) seemed to give me a lot of attention and he seemed to like me and that was so different to how I was treated by my husband. (He) looked a lot older than his age and now he’s only sixteen or so and he probably looks as though he’s twenty.” Mr Cummins noted that you acknowledge that what you did was definitely wrong and you feel embarrassed and stupid about your offending. You acknowledge that, at the time of offending, you were infatuated with the victim and had engaged in repeated acts of distorted thinking but had never physically showed him your genitals or breasts face-to-face and there was no sexual touching. Notwithstanding plenty of opportunities, because he stayed in the house up to three nights a week, you stated that you knew that such physical conduct was crossing the line and you never did anything sexual with him, other than transmitting the subject material.
12 Mr Cummins opined that at the time of offending and currently you are suffering from an Adjustment Disorder with mixed anxiety and depressed mood, which he thought had been triggered by your marital difficulties. Also, you still warrant a diagnosis of Post-Traumatic Stress Disorder relating to your brother’s suicide, even though the symptoms have now reduced in severity. He noted that you had expressed a desire to continue receiving treatment from your current psychologist, Ms Bulman, and were prepared, if necessary, to participate in a sex offender treatment program. He considered that your offending was situationally motivated and opportunistic in the context of a dysfunctional marriage. He considered you were clearly benefiting from the psychological treatment and always knew what you were doing was morally wrong, but were overwhelmed with feelings of infatuation for your victim.
13 He described you as having a dependent personality style, being relatively emotionally immature and self-centred and having unresolved feelings of anger and frustration and being overwhelmed with a variety of physical health problems, as well as a tendency to engage in acting out behaviour. He stated, “In my opinion her offending behaviour was an extreme example of her acting out behaviour, whereby, rather than address the conflict in her marriage, she displaced her feelings onto the victim.” He said you now express appropriate victim empathy, had made a full confession to police and embarked upon psychological treatment such that, as best he could assess it, your risk of reoffending is low.
14 Mr Cummins expressed the view that, at the time of offending, your perception and ability to think clearly and rationally and make appropriate judgments was impaired because of your Adjustment Disorder and your ongoing Post-Traumatic Stress Disorder and that these reduced your moral culpability for the offending. He considered that your mental health would inevitably deteriorate if you were incarcerated and noted that you are very attached to your sons and are a responsible and loving mother to them. He thought it likely that, in near future, you may develop the necessary strength to separate from your husband.
15 Your counsel, Mr Burns, told the Court that you have a close relationship with your parents. Your father was in Court to support you and your mother wrote a reference saying that you were a good person and will always be sorry for the boy that you hurt. Also in Court was your son, who is the best friend of your victim. Your counsel stated that he was forgiving and stated that everyone makes mistakes and he continues to support you. He still maintains his friendship with your victim, albeit away from the family home.
16 Also tendered was a reference from a family friend, Mr Joseph Caruana, who has known you for 30 years. He describes you as being a good citizen and an upright character, as well as a hard worker, who comes from a wonderful family.
17 Notably absent from the Court was your husband. He did write a reference stating that you were a very generous soul who would do anything for her family, in particular, the two children, and that you were always sacrificing your time to help friends. Somewhat ironically, he described you as “an amazing kindred spirit with a zest for life”. He described you as having a very special characteristic namely, your capacity to put other people’s needs ahead of your own and stated that he was “just so proud to be a part of [your] life”. It appears that your husband has very little insight into how bereft you have felt for many years in the marriage to him. He appears unaware of his emotional and physical remoteness from you and that he has failed to appreciate your psychological needs.
18 Ms Powell, this is a serious example of this type of offence. In his statement made to police, your victim describes feeling “really awkward” because he really only went to your house to see your son and he expresses relief to police in being able to talk about it because, “I don’t want to bottle it up anymore.” He described feeling “trapped” by the situation with you, your jealousy about seeing him talk to young girls and the extreme stress he felt when you asked him to lie to police, such that he could not stop shaking and so told his mother what had been happening. He stated that he did not wish to see you anymore, although he wanted to continue his friendship with your son, but also expresses the view that he would not wish to be responsible for sending someone to prison.
19 You were in a position of trust towards your victim. The family of your victim had a number of significant issues which made staying at your home attractive to him and he had a strong relationship with your son. It was a grave breach of that trust that you embarked upon this aberrant fantasy about him. A thirteen, fourteen or fifteen year old boy should never have been put in such a confusing position, with the mother of his best friend imposing upon him in this inappropriate way. There was a massive age difference and gap in life experience and it is a good thing that this bizarre obsession of yours was brought to an end when it did.
20 Although this is a serious example of the offence in question and it took place over a protracted period of some 20 months and involved a real child victim who was known to you and towards whom you owed a parental-like duty when he was in your care, there are some substantial mitigating factors in your favour. The first is that you did voluntarily take yourself to the police station and make a full and frank confession and pleaded guilty at the earliest opportunity. I am satisfied that this is a truly remorseful plea and that you are deeply ashamed of your conduct. I also take into account that you do suffer an Adjustment Disorder with mixed anxiety and depression, primarily relating to your unhappy marriage, as well as ongoing symptoms of Post-Traumatic Stress Disorder referrable to the tragic suicide of your older brother. The prosecution accepts, as do I, that these factors should result in some moderation of the emphasis that would otherwise be placed in denouncing your conduct and upon general and specific deterrence. I also take into account that you are person of previous good character.
21 In all of the circumstances, I consider, as conceded by the prosecution, that a Community Correction Order is an appropriate disposition. It seems to me that you need to continue with ongoing counselling and should have appropriate supervision, undertake some unpaid community work and also engage in a sex offender program at an appropriate level. You have been assessed as a suitable candidate for a Community Correction Order.
22 I have arrived at this conclusion after considering the matters in s16A of the Crimes Act 1914 (Cth). I note that, apart from your psychological issues, you have undergone a number of troublesome physical health issues in relation to surgery for a bowel resection relating to ulcerative colitis and that you are also an insulin-dependent diabetic. You continue to take the antidepressant, Cipramil, prescribed by your general practitioner, for some considerable years preceding the dates of your offending. Overall I consider that the prospect of your rehabilitation is good. Moreover, pursuant to s16A(2)(p) the Court must take into account the probable effect that any sentence or order would have on your family. I consider that it would be a very grave hardship to each of your two children, if you were to be sent to prison. Moreover, your victim has already undergone great confusion and stress and I think it likely that, if you were to go to prison, it may well add to his psychological burden. Quite apart from these factors, I do not consider that this a situation where the only appropriate sentence is one of imprisonment. I am satisfied in the circumstances of your case that all relevant sentencing objectives can be met by a Community Correction Order which I have power to make pursuant to s20AB of the Crimes Act.
23 On one charge of using a carriage service to transmit indecent material to a person under the age of 16 years, you are convicted and sentenced to a undertake a Community Correction Order for a period of two years.
24 The terms of the order are as follows:
(a)you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)you must comply with any obligation or requirement prescribed by the regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria, except with the permission of the Secretary, either generally or in relation to a particular case;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
25 In addition to those terms, the following special conditions apply:
(1)you must undertake 150 hours of unpaid community work;
(2)you must undergo mental health assessment and treatment;
(3)you must undergo any other treatment and rehabilitation to reduce your risk of reoffending;
(4)you must undergo a sex offender treatment program if directed by the Secretary;
(5)you must be supervised, monitored and managed as directed by the Secretary.
26 Ms Powell, you must realise that, if you breach this order, that will mean that you have committed another offence which is punishable by three months' imprisonment. Should that occur, you will be brought back before the Court and dealt with for that breach and, as well, you may be resentenced on the original charge. This could result in you having to serve a term of imprisonment.
27 Do you understand this and are you prepared to undertake a community correction order?
28 Prisoner: Yes, I do, Your Honour.
29 Pursuant to the Sex Offenders Registration Act, as you have been convicted of a Class 2 offence, you will be obliged to comply with the reporting conditions under that Act for a period of eight years. My associate will hand to you a document setting out those obligations and I ask that you please sign an acknowledgment of receipt of that document.
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